114 F.

3d 314

UNITED STATES of America, Appellee,

v.
Nelson Rosalio CORREA, Defendant, Appellant.
No. 96-2159.

United States Court of Appeals,

First Circuit.
Heard May 5, 1997.
Decided May 29, 1997.

Elizabeth A. Lunt, with whom Zalkind, Rodriguez, Lunt & Duncan,

Boston, MA, were on brief, for appellant.
Donald L. Cabell, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, was on brief, for appellee.
Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.
SELYA, Circuit Judge.

Defendant-appellant Nelson Rosalio Correa challenges that part of his sentence

which depends upon the district court's allegedly erroneous computation of his
criminal history score. We first must resolve an issue that divides the circuits.
Once that is behind us, we detect no miscalculation and therefore affirm the
sentence.

2* Background
3

We cull the largely undisputed facts from the plea colloquy, the presentence
investigation report, and the transcript of the sentencing hearing. See United
States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992); United States v. Dietz, 950
F.2d 50, 51 (1st Cir.1991).

A native of the Dominican Republic, Correa resided legally in the United

States for a short spell. That sojourn ceased on January 5, 1994, when, after
having been convicted of various crimes committed between 1989 and 1993, he

was deported. We do not chronicle the complete compendium of Correa's

criminal capers, but confine ourselves to conveying the contours of certain
crimes that possess particular pertinence for present purposes.
5

1. The February Offenses. On March 13, 1991, the Commonwealth of

Massachusetts issued a criminal complaint (later served by summons) which
charged Correa, then 19 years of age, with three counts of breaking and
entering and one count of larceny. See Mass. Gen. Laws ch. 266, 16A, 30
(1990). The charges arose from a spree that occurred on February 19, 1991; on
that date, Correa raided three separate automobiles parked in Danvers,
Massachusetts, and absconded with ill-gotten gain from one.

2. The June Offenses. Some months later, Correa, still 19, was charged with
falsifying his age to purchase alcoholic beverages, in violation of Mass. Gen.
Laws ch. 138, 34A (1991), and contributing to the delinquency of a child for
buying and serving alcohol to two boys, ages 12 and 15, respectively, in
violation of Mass. Gen. Laws ch. 119, 63 (1993). The infractions were
alleged to have occurred on June 8, 1991, in Beverly, Massachusetts.

3. The State Court Disposition Hearing. On October 28, 1992, Correa pled
guilty in a state district court to all charges arising from both incidents. With
respect to the February offenses, the court imposed a nine-month sentence on
the three breaking-and-entering counts and filed the larceny conviction. With
respect to the June offenses, the court filed all the convictions.1

In due course, the government deported Correa. Little daunted, he reentered the
United States unlawfully in 1995 and found his way to Lynn, Massachusetts.
The authorities eventually apprehended him and pressed a charge of illegal
reentry after deportation. See 8 U.S.C. 1326 (1994). Correa pled guilty to this
accusation in federal district court. The sentencing proceeding that followed
comprises the cynosure of this appeal.2

We set the stage. In applying the sentencing guidelines, a nisi prius court,
among other things, transposes the defendant's criminal past into "criminal
history points," thus obtaining a "criminal history score" which yields a
"criminal history category." See United States v. Emery, 991 F.2d 907, 909-10
(1st Cir.1993) (illustrating the process). Since the guideline sentencing range
(GSR) is derived from a grid and is determined in a given case by correlating
the defendant's criminal history category with his adjusted offense level, see
United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.1989), criminal
history points can profoundly affect the length of a sentence.

10

This case typifies the phenomenon. In the course of his sentencing calculations,
Judge O'Toole treated the February offenses as comprising one crime and the
June offenses as comprising another, unrelated crime. Hence, he assigned
criminal history points for each. On that basis, Correa garnered a criminal
history score of 7, which placed him in criminal history category IV. Had the
judge treated the February and June offenses as related rather than unrelated, or
had he deemed the June offenses unworthy of consideration, Correa's criminal
history score would have dropped by one point, placing him in criminal history
category III. At Correa's adjusted offense level (19), the single criminal history
point accounted for a substantial increase in his GSR (which rose from 37-46
months to 46-57 months). See USSG ch. 5, Pt. A (sentencing table).

11

Having added the disputed criminal history point and fixed the GSR at 46-57
months, the judge then accepted the government's recommendation,
incorporated in the plea agreement, that Correa be sentenced at the nadir of the
applicable range. Consequently, the court imposed a 46-month incarcerative
sentence. This appeal ensued. In it, the appellant contends that the district court
erred in adding the extra criminal history point. He makes two arguments in
support of this contention. We treat these arguments sequentially.

II
Related Cases
12

The guidelines require the assessment of criminal history points for "each prior
sentence." USSG 4A1.1. But there are exceptions. One such exception
authorizes sentences imposed in what the Sentencing Commission calls "related
cases" to be treated as a single sentence. See USSG 4A1.2(a)(2). Insofar as
pertinent here, sentences are considered related "if they resulted from offenses
that ... were consolidated for trial or sentencing." Id., comment. (n.3). At
sentencing, Correa argued unsuccessfully that the February and June offenses
fell within this safe harbor (and, therefore, should be deemed related) because
the state court had in effect consolidated them for sentencing. Judge O'Toole
rejected the notion that these disparate offenses constituted a set of related
cases.3 Correa now presses this argument on appeal.

13

The standard of review in sentencing appeals ordinarily is deferential. See 18

U.S.C. 3742(e) (1994); see also Dietz, 950 F.2d at 52. Thus, "where there is
more than one plausible view of the circumstances, the sentencing court's
choice among supportable alternatives" is not clearly erroneous and a reviewing
tribunal cannot disturb it. United States v. Ruiz, 905 F.2d 499, 508 (1st
Cir.1990). However, to the extent that an alleged error involves the district

court's interpretation of a sentencing guideline, it presents a question of law

warranting plenary review. See United States v. Santiago, 83 F.3d 20, 26 (1st
Cir.1996); United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992). So it is
here.
14

In United States v. Elwell, 984 F.2d 1289 (1st Cir.1993), we intimated that a
mere coincidence in timing, without more, is not enough to justify treating
convictions that do not possess common antecedents as having been
consolidated for purposes of sentencing. See id. at 1296 n. 7 (explaining that
such convictions cannot be "deemed 'constructively' consolidated because of ...
[a] plea bargain and concurrent sentences") (dictum). We now transform the
Elwell adumbration into an express holding: at least in respect to offenses that
are temporally and factually distinct (that is, offenses which occurred on
different dates and which did not arise out of the same course of conduct),
charges based thereon should not be regarded as having been consolidated (and,
therefore, "related") unless the original sentencing court entered an actual order
of consolidation or there is some other persuasive indicium of formal
consolidation apparent on the face of the record which is sufficient to indicate
that the offenses have some relationship to one another beyond the sheer
fortuity that sentence was imposed by the same judge at the same time.

15

In so holding, we align ourselves with a number of our sister circuits which

have reached a substantially similar conclusion. See, e.g., United States v.
Patasnik, 89 F.3d 63, 74 (2d Cir.1996); Green v. United States, 65 F.3d 546,
548-49 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 826, 133 L.Ed.2d
769 (1996); United States v. Allen, 50 F.3d 294, 298-99 (4th Cir.), cert. denied,
--- U.S. ----, 115 S.Ct. 2630, 132 L.Ed.2d 870 (1995); United States v. Alberty,
40 F.3d 1132, 1134-35 (10th Cir.1994), cert. denied, 514 U.S. 1043, 115 S.Ct.
1416, 131 L.Ed.2d 300 (1995); United States v. Klein, 13 F.3d 1182, 1185 (8th
Cir.1994); United States v. Garcia, 962 F.2d 479, 483 (5th Cir.1992). By the
same token, we reject the minority view embodied in United States v. Smith,
991 F.2d 1468, 1473 (9th Cir.1993) (envisioning "no need for a formal
consolidation order for cases to be 'related' under section 4A1.2").

16

We are cognizant that some may see insistence on a formal indicium of

consolidation, such as an order or a docket entry, as arbitrary. But judicial
inquiry into a defendant's criminal past for sentencing purposes, properly
conceived, requires only a snapshot of the surface, not an archeological dig.
Thus, when a federal court is obliged to tabulate a defendant's criminal history
score for sentencing purposes, limiting the requisite inquiry to the formal
record--the indictment, the docket entries, the judgment of conviction, and the
like--strikes the right balance. Moreover, it does so in a manner that supplies

needed uniformity while husbanding scarce judicial resources.

17

This approach also is in keeping with the way in which we have treated
analogous matters. After all, when a federal court looks to a prior state
conviction in formulating its sentencing calculus, the court most often
characterizes the previous conviction by means of a formal categorical
approach, restricting its examination to the legislature's definition of the crime.
See, e.g., Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 215960, 109 L.Ed.2d 607 (1990); United States v. DeLuca, 17 F.3d 6, 8 (1st
Cir.1994); United States v. De Jesus, 984 F.2d 21, 23 (1st Cir.1993). If the
legislature's definition provides an inexact construct, however, the court
commonly bases its characterization of the previous conviction on what is
readily apparent from the formal documents in the case, without delving more
deeply into the actual circumstances of the offense. See, e.g., Taylor, 495 U.S.
at 602, 110 S.Ct. at 2160 (permitting a sentencing court, when a categorical
approach fails, to consider the charging papers and jury instructions to ascertain
the contours of the particular prior offense); United States v. Winter, 22 F.3d
15, 19 (1st Cir.1994) (similar); United States v. Fiore, 983 F.2d 1, 3-4 & n. 3
(1st Cir.1992) (similar).

18

We are not disposed to deviate from this salutary principle in interpreting the
"related case" guideline, USSG 4A1.2(a)(2). Were we to do so, we would
make criminal sentencing--already an operose task under the guidelines--a
more cumbersome and time-consuming endeavor with little corresponding
benefit. Criminal history, by definition, deals with bygone events which often
happened in the distant past, or in a remote jurisdiction, or both. Requiring a
federal judge to go behind the formal record and excavate the details of what
transpired in each instance would impose an onerous burden, freighted with
unusual evidentiary difficulties. We think that a categorical rule, analogous to
that sponsored by the Supreme Court in Taylor, better serves the interests of
justice.

19

In the instant case, the record is pellucid that the state court judge never
entered an order consolidating the complaints, which embodied the February
and June offenses, for sentencing or for any other purpose. To the exact
contrary, the complaints embodying these two sets of offenses were at all times
handled under separate docket numbers, and there is no indication that the state
court judge ever gave a moment's thought to whether consolidation was (or was
not) desirable. Moreover, the appellant concedes that the offenses occurred in
different places at different times and that they arose in widely divergent
factual contexts. Last, but not least, this is not a situation in which the court of
original jurisdiction imposed a single sentence spanning a series of discrete

offenses. Rather, the court imposed a prison sentence on the breaking-andentering convictions (the main component of the February offenses) but did not
include the convictions on the June offenses as part of the underpinning for that
sentence. Instead, the court filed those charges, in effect reserving the right to
call up the file and impose a sentence at a future date. See supra note 1.
20

We will not paint the lily. Because there were no formal indicia of
consolidation, the February offenses were not "related" to the June offenses
under a proper reading of the federal sentencing guidelines. Hence, the
appellant's principal assignment of error fails.

III
Juvenile Status Offenses
21

The appellant's fallback position is that, even if the June offenses are not
"related" to the February offenses in the requisite sense, they nonetheless are
juvenile status offenses and thus not countable in compiling his criminal history
score. See USSG 4A1.2(c) (ordaining that the sentencing court should "never
count ... [j]uvenile status offenses" when tabulating criminal history points).
The district court rejected this asseveration. So do we.

22

The sentencing guidelines do not define the term "juvenile status offense,"
although they offer illustrations of crimes which, like juvenile status offenses,
are excludable in computing a defendant's criminal history score. See USSG
4A1.2(c)(2). In determining whether a prior conviction falls within the ambit of
section 4A1.2(c)(2), courts traditionally "look to the substance of the
underlying state offense." United States v. Unger, 915 F.2d 759, 763 (1st
Cir.1990). Moreover, courts can derive some guidance from a mirror image
provision in the guidelines which encourages the assignment of criminal history
points for a crime committed by a defendant before reaching the age of 18 if he
or she perpetrated the crime within the five-year period immediately preceding
the occurrence of the offense of conviction. See USSG 4A1.2(d)(2). This
provision's primary purpose is to promote points for past crimes that predict
criminal proclivity.

23

Considering together the caselaw and the actual guideline provisions, we

conclude that a crime constitutes a juvenile status offense only if three elements
coalesce: (1) the defendant committed the crime as a juvenile, see USSG
4A1.2, comment. (n.7); (2) the conduct would have been lawful if engaged in
by an adult, see United States v. Ward, 71 F.3d 262, 263-64 (7th Cir.1995); and
(3) the offense is not serious, see United States v. Hardeman, 933 F.2d 278,

281-83 (5th Cir.1991). When all is said and done, this third element, which
necessitates the appraisal of gravity for a given crime, is quintessentially a
judgment call. Still, the illustrations of exempted offenses supplied by the
Sentencing Commission, e.g., truancy, hitchhiking, loitering, vagrancy, and
minor traffic infractions, USSG 4A1.2(c)(2), furnish a valid point of
comparison. The enumerated offenses all possess a bland quality that helps to
distinguish them from more substantial transgressions: for example, one
common characteristic is that they provide little, if any, indication of a person's
proclivity to commit future, more serious crimes.
24

In applying this paradigm to the June offenses, we note first that either of the
two component crimes--falsifying one's age to purchase alcohol and
contributing to the delinquency of a child--is, if not an exempted offense,
independently sufficient to warrant the bestowal of the challenged criminal
history point. Since contributing to the delinquency of a child is arguably the
more weighty of the crimes, we focus exclusively on it.

25

The appellant flunks the first segment of the test: the victims may have been
juveniles, but in ascertaining whether a crime is (or is not) a juvenile status
offense, it is the perpetrator's age, not the victim's age, that matters--and Correa
was 19 years old when he committed the act. Accordingly, he was not a
juvenile. See USSG 4A1.2, comment. (n.7) (defining a juvenile for this
purpose as a person under the age of 18). He also fails to satisfy the second
requirement: contributing to the delinquency of a child is conduct which state
law criminalizes regardless of the perpetrator's age. See Mass. Gen. Laws ch.
119, 63.

26

Since the appellant's argument depends on his ability to establish three factors,
and the first two are lacking, we need go no further.4 It is abundantly clear that
the district court did not err either in declining to classify the crime of
contributing to the delinquency of a child as a juvenile status offense or in
assessing an extra criminal history point for it.

27

Affirmed.

In Massachusetts, after a plea of guilty in a criminal case, "a judge, with the
consent of the defendant, may place the case on file rather than impose
sentence immediately." DuPont v. Superior Court, 401 Mass. 122, 123, 514
N.E.2d 1086 (1987). Although that is usually the end of the matter, the case
thereafter "may at any time be called up [by the court] and sentence may be

imposed, or some other final disposition made of it." Marks v. Wentworth, 199
Mass. 44, 45, 85 N.E. 81 (1908). Hence, the defendant's right to appeal is
suspended for the length of time that the case remains on file. See DuPont, 401
Mass. at 123, 514 N.E.2d 1086; Commonwealth v. Delgado, 367 Mass. 432,
438, 326 N.E.2d 716 (1975)
2

The district court apparently applied the November 1995 edition of the
sentencing guidelines. See United States v. Harotunian, 920 F.2d 1040, 104142 & n. 2 (1st Cir.1990) (explaining that the guidelines in effect at the time of
sentencing control unless ex post facto considerations prohibit their use). Thus,
all references herein are to that edition

In so ruling, the lower court relied on an application note instructing that "
[p]rior sentences are not considered related if they were for offenses that were
separated by an intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense)." USSG 4A1.2, comment.
(n.3). The court repudiated United States v. Joseph, 50 F.3d 401 (7th Cir.), cert.
denied, --- U.S. ----, 116 S.Ct. 139, 133 L.Ed.2d 86 (1995), and impliedly found
that the summons Correa received for the February offenses, which had been
served before he committed the June offenses, constituted the functional
equivalent of an intervening arrest. While this holding seems problematic, we
need not resolve the uncertainty. Here, the record plainly presents an alternative
ground for affirmance, and we are free to use that ground in lieu of the trial
court's rationale. See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir.1996)

Because the appellant's argument stalls at the first two stages of the test, we
need not decide whether the offense might be written off either as youthful folly
or as lacking predictive value vis-a-vis future lawlessness (and, therefore, pass
muster at the third stage of the test)